FSC, Justice Dept. Fire Last Shots Over 2257

U.S. District Judge Michael Baylson now will review the submissions, as well as testimony in the trial, to render a verdict before the end of this month.

Attorneys representing the Free Speech Coalition and 15 other plaintiffs delivered an 81-page brief; the Justice Department's brief clocked in at 78 pages, not including 76 additional pages of supplemental attachments in two documents.

Baylson earlier asked that each side produce briefs as short as possible, so the number of pages filed today was astounding.

The case involves the federal record-keeping law for producers of adult entertainment. Plaintiffs in the case allege an unfair and unnecessary burden on companies or individuals presenting any sort of erotic depictions.

Three issues were before the court last month: Whether 2257 and 2257A and their implementing regulations are narrowly tailored under the First Amendment’s intermediate scrutiny test as applied to plaintiffs; whether the 2257 requirements are substantially overbroad under the First Amendment; and whether plaintiffs are entitled to injunctive relief under the Fourth Amendment.

The defense — the Justice Department — in their brief said that 2257 inspections should be upheld under the administrative subpoena standard because they were conducted in a manner designed to minimize any disruption to producers’ businesses.

The government also said that the inspections also qualify as valid administrative searches and didn't violate the Fourth Amendment.

In a plea for summary judgment in the case, the government said in the alternatives that the inspections should be upheld as reasonable based on the totality of the circumstances.

"The 'totality of the circumstances' test balances 'on the one hand, the degree to which the search intrudes upon an individual’s privacy and, on the other, the degree to which the search is needed for the promotion of legitimate governmental interests,'" the Justice Department said, citing U.S. vs. Mitchell.

"For the same reasons ... the 2257 inspections that took place in 2006 and 2007 were reasonable under the totality of the circumstances," the Justice Department said. "The intrusion on a producer’s privacy, involving only an inspection of specific 2257 records that producers are required to maintain for the very purpose of being inspected, was minimal to nonexistent.

"On the other hand, the inspections promoted legitimate governmental interests by ensuring that the 2257 age-verification requirements were being followed, and, by their example, encouraging compliance throughout the industry.

"Accordingly, these prior inspections may also be upheld as reasonable in light of the totality of circumstances in which they occurred."

Justice Department attorneys also asked for dismissal for two co-plaintiffs — Tom Hymes and Carol Queen.

"Two plaintiffs in particular stand out as having failed to establish a case or controversy," the Justice Department said. "Hymes has never engaged in conduct subject to the 2257 requirements. His claim that he would like to become a producer of sexually explicit material revolves around a website that he actively maintained only for a brief period in 2009 while he was working freelance and considering an independent career.

"When that project failed, he returned to work at AVN, one of the adult entertainment media outlets, and his website became moribund for reasons unrelated to § 2257. Hymes’ recent posting of a few stories is not credible as an indication that he actually has a concrete plan to resurrect his website project.

"Similarly, Carol Queen is not engaged in any of the activities she identified as subjecting her to the requirements of 2257. She has not live-streamed her 'Masturbatathons' for the past three years due to a change in venue unrelated to § 2257, her photo class has shut down, and her collage art work has stopped."

The FSC and co-plaintiffs in their post-trial brief said that the regulations permit unconstitutional warrantless occupation of private property for the purpose of obtaining information and that they intrude into a person’s reasonable expectation of privacy.

FSC attorneys said in their brief that the administrative search exception doesn't apply.

"The inspection regimen in the statutes and regulations at issue here is not limited to commercial premises but applies to private homes as well; the record discloses that inspections were conducted in six residences," FSC attorneys said. "Thus, for that fundamental reason alone, the administrative search exception cannot apply.

"Nor are the recordkeeping inspections limited to a specific industry , let alone one that is part of a closely regulated industry. The inspection provisions apply to a vast assortment of disparate producers of expression — artists, freelance photographers and journalists, sex educators and therapists, lovers — some of whom create noncommercial expression, and none of whom are part of any industry, much less a closely regulated one.

"Yet the statutes apply to all producers of expression — whether private, non-commercial or otherwise — and authorize warrantless searches of their homes and studios.

"When questioned about the effect of providing advance notice of the inspections, both FBI agents [who testified] admitted there was little risk that a producer could use the delay to create false evidence, and no risk that they would destroy any evidence. Thus, no justification exists for warrantless searches under the administrative search exception."

FSC attorneys also said that they have standing to challenge the regs under the Fourth Amendment and that the challenge is ripe for review.

"It matters not that the Attorney General has no current inspection program in place," FSC counsel said in the brief. "Defendant is obligated to enforce 18 U.S.C. §§ 2257, 2257A and their implementing regulations. Congress specifically directed in 18 U.S.C. § 2257A [that] on an annual basis, the Attorney General shall submit a report to Congress concerning the enforcement of this section and 2257 by the Department of Justice during the previous 12-month period and ... the number of inspections undertaken.

"Plaintiffs, of course, have no choice but to continue to comply with the law."